Extension Of Time For Investigation Granted Without Notifying Accused Is Invalid: Delhi High Court Grants Bail In NDPS Case

Elaborating on the mandatory safeguards flowing from Article 21 and the statutory scheme, the Court held that the order extending time to complete the investigation, passed without notice to the petitioner, was unsustainable in law.

The Court was hearing a petition challenging the order of the Special Judge granting a 120-day extension to the Narcotics Control Bureau for filing a complaint, and the subsequent rejection of the petitioner’s application for default bail.

A Bench comprising Justice Neena Bansal Krishna, upon hearing the matter, observed: “since the extension was granted without producing the Petitioner or even informing him that such a request was being heard, the order cannot be sustained. Not following this mandatory step makes the extension invalid and directly affects the Petitioner’s right to default Bail. Once there was no valid extension, and the Petitioner’s right to default Bail came into force automatically. He was, therefore, entitled to claim default bail as a matter of right”.

Background

The case arises from the NCB’s investigation into the recovery of 3.6 kg of Codeine Phosphate tablets from a DHL parcel. During subsequent operations, the petitioner was intercepted, and a search of his residence allegedly resulted in the recovery of 29.89 grams of suspected psychotropic tablets. He was formally arrested and has remained in judicial custody since that date.

Subsequently, the Investigating Officer filed an application seeking an extension of 120 days to complete the investigation, which was withdrawn due to technical defects. The following day, a report under Section 36A(4) NDPS Act was filed by the Special Public Prosecutor seeking the same extension, and the trial court granted it on the same day. The petitioner was neither informed of the request nor produced before the court when the extension was considered, even though he had been produced before the Court that day for the extension of judicial custody.

Unaware of the extension order, the petitioner applied for default bail after the expiry of the 180-day statutory period. The trial court dismissed the application, holding that the extension had already been granted. The petitioner challenged both orders before the High Court.

Court’s Observations

The Delhi High Court examined the statutory framework under Section 187 BNSS and Section 36A(4) of the NDPS Act, reiterating that the right to default bail is an essential safeguard flowing from Article 21. The Bench underlined that this right becomes enforceable once the statutory period expires without a valid extension of time for investigation. The Court traced the jurisprudence, beginning with Suresh Kumar Bhikamchand Jain, Uday Mohanlal Acharya, and S. Kasi, reaffirming that the statutory timelines prevent indefinite incarceration and that the right to default bail is “indefeasible” until extinguished by the filing of a valid, lawful extension.

The Court emphasised that the power to extend the time for investigation under Section 36A(4) NDPS Act is strictly conditional upon the Public Prosecutor submitting a report detailing the progress of the investigation and the specific reasons for continued detention. The Court noted that the petitioner had argued that the SPP’s report was cryptic and reproduced the earlier IO’s application, and that the question of compliance with statutory requirements must be rigorously examined, given the consequences for personal liberty.

The Bench extensively relied upon Sanjay Dutt v. State (1994), where the Supreme Court held that the accused must be produced before the court when an extension of time for investigation is being considered, and that production itself constitutes adequate notice. This principle was reaffirmed in Jigar v. State of Gujarat, where the Supreme Court held that non-production of the accused is not a mere procedural irregularity but a “gross illegality” violating Article 21, as the extension deprives the accused of the right to default bail.

After examining the order issued in the matter at hand, the Court observed that there was no reference to the petitioner’s presence or any indication that he was produced physically or virtually when the extension request was considered. The attendance recorded merely stated that the accused were “in JC”, which, the Court held, clearly indicated that the petitioner was not present before the court at the relevant time.

The subsequent argument of the NCB that the petitioner had been produced earlier that day for extension of judicial custody was rejected, as the record demonstrated that such production was unrelated to the hearing on the extension request.

The Court concluded that the absence of production of the accused and the absence of notice rendered the extension order invalid and in contravention of established judicial precedent. As the extension was illegal, the statutory period expired without a valid extension, and the petitioner’s right to default bail was automatically triggered.

Conclusion

Holding that the extension order was passed in violation of mandatory procedural safeguards, the Court set aside both the extension order and the subsequent rejection of the petitioner’s application for default bail. With the statutory period having expired without a valid extension, the petitioner was found entitled to default bail as a matter of right.

The Court granted default bail subject to conditions, including furnishing a personal bond of ₹35,000 with a surety, appearing before the trial court as required, keeping his mobile number operational, abstaining from criminal activity, and informing the authorities of any address change.

Cause Title: Jaivardhan Dhawan v. Narcotics Control Bureau (Neutral Citation: 2025:DHC:11203)

Appearances

Petitioner: Puneet Mittal, Senior Advocate, with Advocates Abhaid Parikh, Kartik Rathi, Vipul Agrawal, Sakshi Mendiratta, Kashish Jain, Advocates

Respondent: Arun Khatri, Standing Counsel; Shelly Dixit, Tracy Sebastian, Advocates

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